A blot that’s also a badge of honour

In almost 10 years of working as a journalist up to 1994, I never ever faced a formal complaint to my bosses or the industry watchdog, criminal charges or a civil lawsuit, from the subject of a story.

It’s not that I never made a mistake or missed a cue. But I worked damn hard to do my job as ethically – including accurately and fairly – as possible.

By 2014, after a 20-year hiatus from the newsroom, I was back on the Daily Dispatch in East London where I had started in the 1980s, and being grilled by the Press Ombudsman for a story I’d written and which the newspaper had published about local civil court magistrate Xoliswa Stuurman.

The original article was based on the off-the-record or not-for-attribution comments of a number of confidential sources, people at the highest level of the magistrate’s court system, the department of justice, and attorneys in private practice. The thread of the allegations was astounding and pointed to a local magistrate, a civil servant in a significant position of authority in the justice system, being out of control both in the way she managed her court as well as in out-of-court interactions.

Chief magistrate Valerie Gqiba said – and the East London Attorneys’ Association confirmed under the hand of its president Bulwana Bangani – that a complaint had been lodged over delayed default judgments.

Some of the other allegations made and reported included that magistrate Stuurman was racist, recalcitrant, unprofessional, worked at “her own snail’s pace”, flatly refused to do her job and was being investigated by the Magistrates Commission. Given the public’s interest in fair judicial processes and ethical, accountable behaviour on the part of presiding officers, publication of the claims was warranted, despite difficulties in obtaining on-the-record verification, even official confirmation that an investigation was underway.

Journalists should always be mindful of the possibility that an allegation might be leaked – or a fictitious allegation planted – by a source with an axe to grind. In this instance, the anonymous sources which provided input for the story were irreproachable on their substantive claims, even if some aspects were incorrect and despite their reticence to be identified for fear of being victimised by Ms Stuurman when next they appeared in her court or because employment policies precluded them from speaking to the media.

Yet, there we were, before a panel convened by the Press Ombudsman following a complaint by Ms Stuurman, who contested every allegation in the article. She point-blank repeated at the Ombud enquiry her denial to me that she was under investigation by the Commission. Almost four years of stonewalling later, it turns out that Stuurman was a worse bully than we could have imagined.

It is now a matter of public record that Stuurman faced two investigations by the Magistrates Commission, that she was charged in a disciplinary tribunal, convicted of 17 counts involving contraventions of the code of conduct for magistrates, was subject to impeachment proceedings in both houses of Parliament which approved her removal from office, and dismissed by the Minister of Justice on January 24 this year.

The Press Ombud held that some details in my article provided by sources were factually incorrect. I accept this. However, Stuurman’s denial that she was being investigated for being “recalcitrant, defiant and unprofessional cannot be upheld – she was indeed being accused of these matters”, the panel found.

Even without the benefit of that record, the validity of the Press Ombud’s findings were questionable:

• that I had not given her sufficient time to respond – she never asked for more time;

• that I had unfairly written about one of her judgments being overturned and “ignored the multitude of other findings by Stuurman that were not overturned” – in the context of a slate of complaints against her, the finding by two judges that there might have been “bias on her part” when she did not apply the law to a case, was hugely relevant;

• and that there was no justification for a claim she was racist after she had “verbally abused a non-Xhosa speaking attorney in Xhosa” – two attorneys and one justice official (two black professionals and one white) repeated the claim of racism to me.

Part of the difficulty is that the Press Ombud process purports to be a legally valid enquiry but falls horribly short in the basic requirements that ought to be in place, such as the objective tests of evidence usually required in similar tribunals. Instead the panel seemed swayed by Stuurman’s willy-nilly conflation of issues, mis-directions, bogus challenges to the facts, and serious if unfounded and poorly argued aspersions on my character.

There are other concerns brought into sharp relief by Stuurman’s dismissal.
Firstly, the magistrate’s commission needs to buck up its communication systems. The processes for managing magistrates are in place for the proper administration of justice – for the public’s benefit. It is essential for the public to know about these processes when they are activated. The commission is obligated to report to the public – and the media – factual information on its work, yet has been singularly opaque. Disciplinary hearings, for example, are public forums and the public has a right to know about them, and a right to know as soon as reasonably possible, not after the fact.

Secondly, the outcome of the Stuurman disciplinary generally does not reflect very highly on the members of the legal profession in East London who either had personal experience of Stuurman’s behaviour or knew through their professional body. Individually and as a professional collective, attorneys should have taken a public stance against Stuurman’s self-important abuse of those with whom she interacted every day, and her violation of their rights. Not a single person whom I approached in preparing the initial article on Stuurman was prepared to comment on the record, except for the chief magistrate and the association chair – both of whom only spoke within a very limited ambit. All the sources feared being victimised if they commented – validly so, given Ms Stuurman’s clear threat in her initial response to me and as her belligerent subsequent emails suggest.

But it does not exonerate them for their timidity and formalistic attitude. This is a great sadness, given the rights-based environment within which they operate. It is no different to a medical professional refusing to stop at the side of the road to attend to a pedestrian knocked down in an accident because of the risks something could go wrong. Even this month’s official response of the Attorneys’ Association to Stuurman’s dismissal offers an almost exculpatory “we as the Attorneys Association, had to be cautious with dealing with the issues”, even while it welcomes and respects Parliament’s decision “as we feel it may well be in the best interest of justice”,

As pointed out by Matthew Bell who, as a candidate attorney at the time bore the brunt of Stuurman’s outburst during a default judgment hearing, the legal fraternity must “learn that standing up against injustice is part and parcel of what being an attorney is all about, especially when the injustice comes from a seat of power. If we cannot stand up against injustice in whatever form it takes, then we are unworthy of the legal profession as a whole”.

Today, if you search for my name online, the Press Ombud’s ruling still comes up and sticks in the craw. It is a blot on my work – but I have no regrets about writing about this abuse. – RAY HARTLE